Reversal in H-1B lottery order, first priority to US degree holders

The final H-1B cap registration rule, which will reverse the order of the H-1B lottery process has been issued on January 30.

As per the rule, the regular lottery will be conducted first, giving those with a US master’s (or higher degree), a better chance of winning the H-1B lottery.

There are 65,000 H-1B visas available each year.

Mumbai: The final H-1B cap registration rule, which will reverse the order of the H-1B lottery process has been issued on January 30, by the US Department of Homeland Security (DHS). As per the rule, the regular lottery will be conducted first, giving those with a US master’s (or higher degree), a better chance of winning the H-1B lottery.

This will make it more challenging for Indian aspirants without an advanced US degree to get a H-1B visa. DHS, however, has postponed the implementation of an online registration system.

There are 65,000 H-1B visas available each year, with an additional 20,000 allocated to those with an advanced degree from US colleges (referred to as Masters cap). Currently, the “Masters” cap lottery is conducted first; cases not selected in this lottery are then placed in the ‘Regular’ cap lottery for another round of random selection.

Fragomen, a global firm, specialising in immigration laws, in its alert expalins, “For the upcoming fiscal 2020 H-1B filing season, which commences on April 1, United states Immigration and Citizenship Services (USCIS), will first run the regular H-1B cap lottery to select enough petitions to meet the 65,000 H-1B quota. It will then run a lottery to select enough qualifying petitions to meet the cap exemption of 20,000 for holders of US advanced degrees. The agency estimates that the change will yield a higher proportion of advanced-degree workers, one of the key goals of the Trump Administration’s Buy American, Hire American executive order.”

Cyrus D Mehta, founding partner of a New York based law firm told TOI, “The skewing of H-1B visas towards those with master’s degree from US institutions under the new selection methodology is in some senses counter to the H-1B law, which was to permit those with foreign degrees, and equivalent work experience, to qualify for H-1B classification. Hence, a foreign degrees, and equivalent work experience, to qualify for H-1B classification. Hence, a foreign physician with a master’s degree in medicine from a foreign university who intends to provide critical medical services in a shortage area in the United States may have less chances of nabbing an H-1B visa under the new proposal.”

H-1B visas are popularly used by the Indian tech sector. Mehta adds, “Even a highly skilled IT worker with a bachelor’s degree in computer science from a reputed Indian institution such as the Indian Institute of Technology, will have less chance of getting an H-1B in the new proposal. Both the physician and the IT worker with foreign degrees have the potential of making contributions to the US in the same way, or even greater, as one who has recently graduated with a MBA from a US university.”

On the flip side, David Nachman, managing attorney, at NPZ Law Group points out, “More individuals will end-up pursuing higher levels of education in the areas of science technology and engineering in the US. This, will in-turn require additional staffing and development of new and enhanced STEM academic programs in the US – resulting in more jobs and more work for US workers.”

Florida based, Vishal Ghadia, who runs a legal process outsourcing company points out, “Students in Masters degree programs at US insitutions pay upwards of $40,000 in total fees. This regulation will help level the playing field for these students and provide more security and clarity for their future.”

The overall annual cap of 85,000 remains unchanged. As the number of applications for H-1B far exceed the annual cap, USCIS over the past several years, has been resorting to a lottery mechanism for selection. For the 2018-19 season (FY ending September 30,2019), the US agency received 1.90 lakh applications, of which 95,885 were from those eligible for the ‘Masters’ cap.

TOI in its edition of December 2, 2018 had analysed the proposed move. Representatives from the IT sector had said that the reversal in lottery order, will adversely impact, as many employees who are to be deputed to US, do not have advanced degrees from the US.

USCIS expects the reversal in lottery order, to result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a US institution of higher education.

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